SCENARIO 5

by Tristan Pelayes

The scenario is that you are called to a neighbor dispute over parking vehicles.  You arrive and speak to the reporting party who indicates that her neighbor next door was just at her front door about 30 minutes ago and threatened to hurt her.  The reporting party indicates there is a dispute over a property line and where vehicles can be parked.  The neighbor who allegedly made the threats claims the reporting party is parking on her property, but the reporting party assures you that is not the case and the threatening neighbor is crazy.

You arrive to speak with the threatening neighbor and she comes to the door in her bathrobe.  The front door has a screen door which you opened to knock on the front door to make contact with the neighbor.  The neighbor opens the door to speak with you.  When you ask the neighbor about the threats that were allegedly made she denies making any threats and asks you to leave.  At the same time she tries to close the front door on your person.  As she is trying to close the main door you prevent it from closing with your foot and make entry into the home.  She wants you to leave and you contact a watch commander who is on the way.  At the same time she calls the police claiming that you are breaking into the residence, and dispatch advises that the police are there and she hangs up the phone.  At this point, she decides she wants to go change and says to you that she is going into her bedroom.  You tell her she has to stay in the room and you prevent her from leaving.  She tries to get past you and you try to prevent her from going around you and use pepper spray on her.  After she is sprayed you place her in handcuffs.  By this time her bathrobe is down from the scuffle with her exposed, but you let her 12-year-old son get a towel so she can cover up.

Do you see any entry issues?

Keep in mind the scenario indicates that the alleged threat occurred 30 minutes before you got there.  The reporting party told you that her neighbor threatened to hurt her.  Unfortunately, in this case there was no further inquiry as to what “hurt” meant.  Also, there was not any other inquiry regarding the crazy neighbor’s capability of hurting the reporting party or any background history other than this was a parking dispute.  When the officer went to the front door the neighbor obviously denied making any threats and attempted to close the door.  At that point without any further information or evidence of any actual crime, there was no legal right to prevent the neighbor from closing the door.  Also, there was no legal right to enter the residence.  And of course, the officer in question did not wait for the watch commander before the scuffle began.

Use of force issues?

 Of course, once an entry is made into the house and it is an illegal entry, any use of force thereafter is going to probably be held to be improper.  In this case the scuffle started because the crazy neighbor wanted to go into the bedroom and change.  Naturally, the argument here is that the officer needed to keep an eye on the neighbor because of officer safety reasons.  However, if the entry is improper by then the neighbor has a right to go anywhere in her house.  Without questioning the reporting party about any possible weapons or anything beyond an alleged mere threat, at that point you are basically committing a false imprisonment on the neighbor since you are preventing her from walking around in her own house in a bathrobe.

 Arrest issues?

In this case, because of the scuffle, because of the fact that the neighbor wanted to go change, the officer not only handcuffed her but pepper sprayed her.  The charge: presumably some time of obstruction of justice charge or delaying of an investigation.  However, if the neighbor is free to move around in her own house and you enter her home illegally, any arrest and use of force thereafter would also be illegal.

Now suppose you are the watch commander and you just arrived at the scene.  What do you do as the supervisor, if anything?

The key here is not to compound the problem by actually taking the crazy neighbor to jail and booking her.  I know that a lot of law enforcement officers are taught that if you ever put your hands on somebody, especially if you pepper spray then, well then they have to go to jail.  That is not the case, keep in mind that if all your actions up to that point were illegal you are now just adding a false arrest.  In a civil rights lawsuit if this person has to go through the booking, bail, and then hiring of a criminal defense attorney, you are just compounding the problem.  The booking at the jail does not make all your previous actions legal.  Therefore, as the arriving supervisor sometimes you have to just un-cuff the alleged suspect and apologize.  From that point forward you document as much as you can, and hope the statute of limitations to file a civil rights lawsuit passes.